Union of India vs Imtiyaz Ahmad Rather

Hasnain Massodi, J.—Union of India & its officers through medium of writ petition on hand, throw challenge to the judgment of Central

Administrative Tribunal (CAT), Circuit Bench at Srinagar in Original Application (OA) No. 327-JK-2005 titled Imtiyaz Ahmad Rather v. Union of

India & ors. before going through the grounds of challenge, it would be appropriate to trace the background facts. Shri Imtiyaz Ahmad Rather

(respondent herein) working as Labourer in the appellant department was dismissed from service, in terms of order dated 31st March 1997, after

an enquiry into his unauthorized absence was concluded in ex-parte. He called in question the termination order in a Civil Suit being Suit No. 89 of

1998 before learned Munsiff/Sub-Registrar Srinagar. The suit was decided vide judgment dated 31st December 2001. Learned trial Judge set

aside the Order impugned in the suit on the ground that after the enquiry was concluded, 2nd show, cause notice i.e. a notice informing the

respondent/plaintiff about the proposed punishment was not served on the respondent-plaintiff and that the copy of the enquiry report was not

furnished with show cause against the proposed punishment. The respondent-plaintiff was directed to be reinstated. However, Liberty was given to

the appellants to direct a fresh enquiry and give him an opportunity to show cause against the proposed punishment.

The judgment dated 31st December 2001 was questioned by both the parties before the 1st Appellate Court. The 1st Appellate Court modified

the judgment and decree to the extent that the appellants were given liberty to conduct enquiry from the stage of 2nd show cause notice. In other

words, appellants in wake of judgment rendered by the 1st Appellate Court did not have liberty to start enquiry afresh from the initial stage. The

Appellate Court also did not record agreement with the learned trial Judge as regards the reinstatement of the plaintiff-respondent.

The 1st Appellate Court judgment was thrown challenge, in Civil 2nd Appeal before this Court. The Civil 2nd Appeal did not succeed as in the

opinion of Court, there was no substantial question of law raised in the memorandum of appeal.

The appellants served a show-cause notice styled as ""2nd show cause notice"" on the respondent on 3rd July 2004. The respondent through his

counsel submitted reply to the show cause notice on 26th July 2004. However, before the reply from respondent was received, the appellants

appointed Captain M.K. Sharma as Enquiry Officer in terms of Rule 14 of CCS (CC&A) Rules 1965. The enquiry officer was required to submit

his report and make his recommendation to the disciplinary authority. The enquiry officer made his recommendation on 20th July 2004 and

recommended that the earlier awarded punishment be maintained. The appellants thereafter provided copy of the enquiry report to the respondent

on 1st August 2004 i.e. a few days after the 2nd enquiry officer made his recommendation. In the meantime, appellants acted on the

recommendation made by Captain Sharma and dismissed respondent from service vide order dated 27th July 2004.

Respondent questioned the initial order dated 31st March 1997 as also the order dated 27th July 2004 whereby the respondents' service was

terminated in an Original Application before Central Administrative Tribunal. The Tribunal vide its judgment rendered on 6th March 2009 set-aside

the order dated 27th July 2004 and directed the respondents to deal with the intervening period and the question of payment of back wages in

accordance with rules.

The appellants assails the order of Central Administrative Tribunal dated 6th March 2009 in the writ petition on hand on the grounds set out

therein.

We have gone through the pleadings as also order impugned in the writ petition. We have heard learned counsel for the parties at length.

The Central Administrative Tribunal has allowed the Original Application filed by respondent, primarily on the ground that the 2nd show cause

notice served on the respondent did not meet the requirements of Rules and in particular Rule 15(2) Central Civil Services (Classification, Control

And Appeals) Rules, 1965. The Tribunal took a view that the respondent was not informed about the proposed punishment and therefore was

prevented from showing cause, against the proposed punishment. It was next pointed out that the copy of the enquiry report was not, in violation

of the directions given by the trial court, upheld in an appeal against the judgment, provided to the respondent.

Learned counsel for the appellants insists that as the respondent was aware of the punishment that the appellants proposed to impose on him,

failure on their part to indicate proposed punishment in the show cause notice would not vitiate the proceedings and should not have persuaded the

tribunal to quash the order dated 27th July 2004. Mr. Makroo states that the respondent to succeed in the Original Application before the tribunal

had to show that he was prejudiced by failure on part of the appellants to indicate in the notice the punishment, they proposed to impose on him.

Mr. Makroo disputes the observation made by the Tribunal as regards the availability of the enquiry report to the respondent. It is argued that the

appellants provided copy of the enquiry report to the respondent and, therefore, the respondent cannot have any grievance on that count.

The grounds urged in the petition and the arguments advanced by Mr. Makroo are far from convincing and do not find support from record

available on the file. In the first place, as admitted by learned counsel for the appellants, the show cause notice dated 3rd July 2004 does not

indicate the punishment proposed to be imposed on the respondent. We need not emphasize that the disciplinary authority, is to serve 2nd show

cause on the conclusion of an enquiry, in the event, the enquiry report holds the delinquent official guilty of alleged misconduct. This is to give him

an opportunity to convince the disciplinary authority that there are mitigating circumstances in his favour, as should persuade the disciplinary

authority to impose a lesser punishment than one indicated in the show cause notice. Once the show cause notice does not indicate the proposed

punishment, he is denied opportunity to make a meaningful use of a right available to him, to show cause against the proposed punishment. There

was no reason for the appellants to presume that respondent, would have expected to be awarded same punishment, proposed to be imposed in

the earlier order, set-aside by the Court, more so, when the respondent had successfully challenged the initial termination order and the trial court

judgment had been upheld right upto the High Court in Civil 2nd Appeal.

In the circumstances, there is no scope for any disagreement with the Central Administrative Tribunal that the 2nd show cause notice does not

answer the requirements of Rule 15(2) CCS (CC&A) Rules, 1965. The argument as regards availability of enquiry report to the respondent is

without any-substance. The appellants fail to realize that the enquiry report was provided to the respondent a few days after the termination order

was issued by the disciplinary authority. Providing respondent with the copy of the enquiry report on 1st August 2004 when the recommendation

for his termination by 2nd enquiry officer was made on 20th July 2004 that culminated in the termination order of 27th July 2004, would serve no

purpose. The requirement to provide copy of the enquiry report and even the background material to a delinquent officer held guilty of the

misconduct alleged against him, is to enable him to convince the disciplinary authority, that, there is material even on the enquiry record that should

lead to award of lesser punishment than one proposed to be imposed on such official. Once copy of the enquiry report was not provided to the

respondent, that too in utter disregard of the trial court order, before the termination order was issued, or before the recommendation by 2nd

enquiry officer was made on 20th July 2004, the respondent undoubtedly was handicapped to represent against the proposed punishment.

It is pertinent to point out that in terms of the trial court judgment read with the order of 1st Appellate Court, all that the appellants were

required to do was to serve 2nd show cause notice on the respondent, affording him an opportunity to show cause against the punishment

proposed to be imposed on him. The appellants were also required to provide copy of the enquiry report to the respondent. The appellants,

surprisingly, instead of serving 2nd show cause notice on the respondent appointed Captain M.K. Sharma as second enquiry officer. It would be

appropriate to reproduce the order whereby Captain M.K. Sharma was appointed as second enquiry officer and his mandate spelt out in the

order-

As a sequel to the judgment of Hon'ble Additional District Judge, Srinagar pronounced on 10th June 2004 n the case titled Union of India &

Ors. v. Shri Imtiyaz Ahmad Rather, the undersigned being the disciplinary authority after having dispatched Second Show Cause notice to Shri

Imtiyaz Ahmad Rather vide 2 FOD registered/AD letter No. 705/IAR/223/Estt dated 3rd July 2004 hereby appointed Major M.K. Sharma as

Inquiry Officer under Rule 14 to be read in junction with Rule 15 of the CCS(CC&A) rules 1965.

Inquiry officer shall inquire and draw up his report sanctioning therein all the events concerning the period of absence, issuance of notices

departmentally to ex. T. No. 6553. Lab Shri Imtiyaz Ahmad Rather, publication of notice in two local daily newspapers and also the fact of having

served second show cause notice to Ex.T. No. 6553. Lab Shri Imtiyaz Ahmad Rather.

The undersigned directs to complete inquiry proceedings as stipulated above latest by 26th July 2004.

A closer look at the order dated 13th July 2004 would reveal that the appellants as a matter of fact intended to direct enquiry in the matter

from the initial stage. The enquiry officer was not asked to examine the question of punishment to be imposed, but, to give his findings as regards

respondent's guilt. The appellants may be held to have a right to conduct de novo enquiry but in that event, respondent was to be associated with

such enquiry and give an opportunity to take a stand against whatever was alleged against him. The second enquiry officer instead, perused the

record and made his recommendation on 20th July 2004 holding the respondent guilty of the misconduct alleged against him and also

recommended that punishment already imposed be maintained. The course adopted would raise a number of issues. In case the enquiry conducted

by Captain M.K. Sharma was a fresh enquiry, the respondent was to be associated with such enquiry and in case, he was held guilty as is reflected

in the recommendation dated 20th July 2004, he was to be given 2nd show cause notice afresh and provide copy of the recommendation made by

Captain M.K. Sharma. This has not been done.

Looking at the matter from all angles, we do not find any reason to take a view different from one taken by Central Administrative Tribunal.

No interference is warranted in these circumstances. So, viewed thus, writ petition is dismissed.